EEOC Issues Rule Affecting How Employers Must Treat Pregnant Workers
Last year, Congress passed the Pregnant Workers Fairness Act (“PWFA”), which requires employers in the private sector with 15 or more employees to provide reasonable accommodations for known limitations related to, affected by, or arising out of pregnancy, childbirth, or “related medical conditions,” unless such accommodations will cause an undue hardship on the employer’s operations. While other laws prohibit discrimination based on pregnancy, the PWFA requires employers to accommodate such matters even if the medical conditions are transitory and not covered by the Americans with Disabilities Act (“ADA”).
As often happens with federal legislation, the PWFA itself is open for interpretation, and Congress left it to the Equal Employment Opportunity Commission to fill in the gaps by creating new enforcement regulations in a “final rule.” After months of public comment and review, the EEOC published its 408-page “final rule and interpretive guidance” regarding the PWFA on April 19, 2024, and it will go into effect on June 18, 2024.
Although Similar, PWFA Has More Stringent Requirements than the Americans with Disabilities Act
While the PWFA has processes and requirements similar to the ADA, there are notable differences between the two laws.
- “Known limitation” of employee can be minor.
First, under the PWFA, a “known limitation” is broader than the disabilities covered under the ADA. It must be a mental of physical impediment, but it does not need to be serious. The limitation can include minor, common conditions as long as they meet the other requirements of the statute. In fact, according to the EEOC, an employee can request an accommodation to reduce increased pain or risk to the employee’s health that is related to pregnancy, childbirth, or a related condition.
- Worker only needs to provide notice of a limitation and a need for adjustment.
Second, as with the ADA, the limitations must also be “known” by the employer through communications by the employee or the employee’s representative, although no specific language is necessary. In essence, a request of accommodation only requires the employee provide notice to the employer that the employee has a limitation and, as a result, needs an adjustment or change at work. This triggers the employer’s duty to enter into an interactive dialogue with the employee in an attempt to find an acceptable accommodation.
- Pregnancy is defined broadly.
The EEOC defines terms in the PWFA broadly. “Pregnancy” can refer to a current, past, or intended pregnancy. “Related medical conditions” include miscarriage, stillbirth, abortion, infertility, fertility treatment, lactation, birth control use, menstrual cycles, postpartum depression, gestational diabetes, changes in hormone levels, and a host of other similar conditions. Such conditions can even include common conditions, such as chronic migraine headaches, high blood pressure, and incontinence, as long as they relate to or are exacerbated by pregnancy and childbirth.
- Unlike ADA, PWFA does not require employee to be able to perform job functions during short term.
Another difference between the ADA and the PWFA is how each defines an employee as “qualified.” Like the ADA, the PWFA defines a qualified employee or applicant is one who can perform the essential functions of the employment position with or without an accommodation. The PWFA, however, has a second, more stringent definition that states that even if the employee cannot perform the essential functions of the job, they are still considered “qualified” if (i) the inability to perform the essential function is temporary; (ii) the employee should be able to perform the essential function “in the near future,” and (iii) the temporary inability can be reasonably accommodated. The EEOC defines “in the near future” as 40 weeks from the start of the temporary suspension of an essential function. Essentially, then, the PWFA calls for the temporary suspension of an essential function or functions of the employee’s job if necessary. This does not, however, mean that the essential functions of a pregnant employee must always suspended for 40 weeks or every accommodation request seeking a suspension for 40 weeks must be granted.
Interactive Process and Undue Hardship Are Similar to ADA
As with the ADA, employers are expected to engage in an interactive process to explore possible accommodations. The final rule does not require an employer to provide an employee’s requested accommodation if a reasonable alternative is available, but if an employee’s requested accommodation does result in an undue hardship, the employer must consider any alternative that does not cause such undue hardship.
The final rule also provides several examples of possible reasonable accommodations under the PWFA, which include but are not limited to: (i) job restructuring; (ii) modified work schedules; (iii) more frequent breaks for use of the restroom, drinking, eating, and/or resting; (iv) modification of equipment, uniforms, or devices; (v) use of paid leave and additional unpaid leave; (vi) light duty; (vii) telework; (viii) temporary suspension of one or more essential functions of the job; (ix) reserved parking spaces; and (x) “other similar accommodations.”
The PWFA follows the definition of “undue hardship” used in the ADA, which requires significant difficulty or expense for the employer’s operations and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. The final rule, however, adds additional factors that may be considered when determining whether the temporary suspension of an essential function causes an undue hardship. These include (i) consideration of the length of time that the employee will be unable to perform the essential function(s); (ii) whether there is work for the employee to accomplish; (iii) the nature of the essential function, including its frequency; (iv) whether the employer has provided other employees in similar positions who are unable to perform the essential function(s) of their positions with temporary suspensions of those functions and other duties; (v) if necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential function(s) in question; and (vi) whether the essential function(s) can be postponed or remain unperformed for any length of time and, if so, for how long.
The EEOC has cautioned, however, that the following modifications “virtually always found to be reasonable accommodations that do not impose an undue hardship: (i) carrying water and drinking it as needed; (ii) allowing additional restroom breaks; (iii) allowing sitting for those whose work requires standing and standing for those whose work requires sitting; and (iv) allowing breaks as needed to eat and drink.
Employer Can Violate the Law by “Unreasonably” Requiring Supporting Documentation
Under the final rule, an employer is not required to seek supporting documentation from an employee or applicant who requests an accommodation under the PWFA. However, should the employer seek such documentation, it is only permitted to do so if it is reasonable to require documentation under the circumstances for the employer to determine whether the employee (or applicant) has a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions (a limitation) and needs a change or adjustment at work due the limitation. If the request is not reasonable under the circumstances, it violates the PWFA. As part of the interpretive guidance, the EEOC provides that one such situation where the seeking of documentation would be unreasonable would be when “(1) the known limitation and need for reasonable accommodation are obvious; and (2) the employee confirms the obvious limitation and need for reasonable accommodation through self-attestation.” Put simply, if an employee informs an employer that she is pregnant and is “showing,” then documentation would be unnecessary.
PWFA Prohibits Retaliation and Threats
Finally, the PWFA prohibits retaliation against any employee or applicant because they have opposed acts or practices made unlawful by the PWFA or who has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the PWFA. The final rule also prohibits coercion, intimidation, threats, or interference with any individual in exercising their rights under the PWFA or in aiding or encouraging others to exercise their rights under the PWFA.
The preceding is not intended to be an all-inclusive review of the PWFA. The final rule includes numerous additional requirements, examples, and limitations. Employers are encouraged to seek qualified legal counsel before taking any actions against an employee that may be related to or arise from that employee’s pregnancy or related condition.
Jeff Wilson is Pender & Coward shareholder focusing his practice on employment law matters, including counseling and business litigation.
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